The issue of “newsletter opt-ins” is often on our clients’ agenda – because the legal requirements regularly become a challenge for their email marketing activities.
Recently, the discussion has relied on a judgment handed down by the Higher Regional Court of Frankfurt in 2019, according to which consent to receive a newsletter can be made a prerequisite for the participation in a free prize draw – without this constituting a breach of the requirements for effective consent. This exception to the “forced consent” rule under art. 7(4) GDPR had also been confirmed by courts in Austria and Italy (we previously discussed this as well).
Now, a short section in the recently published annual report of the NRW State Commissioner for Data Protection and Freedom of Information (LDI NRW)provides both confirmation and confusion on this point: For the first time, an influential data protection supervisory authority is commenting on this practically relevant question – and confirms that newsletter consent may be made a prerequisite for the participation in a free prize draw.
However, the LDI NRW uses a completely different legal approach than the OLG Frankfurt: The legal basis for the data processing necessary for sending a newsletter should not be the consent of the recipients, but the sweepstake agreement. This means that, in the opinion of the authority, by disclosing one’s email address, the recipient “pays”, so to speak, for the opportunity to participate. This requirement needs to be communicated accordingly in the terms and conditions.
On the one hand, the solution of the LDI NRW is somewhat peculiar and, on the other hand, questionable – because, in our legal system, the courts are above the supervisory authorities. Namely, the authority fails even discuss the opinion of the Higher Regional Court of Frankfurt in its statement.
In the end, it is good news that the concept of “newsletter consent in exchange for participation in a free prize draw” is considered lawful. In practice, this concept is also applied to other free offers such as whitepaper downloads and registration for webinars. These constellations, however, have not yet been discussed in court rulings or statements by the supervisory authorities.
We will take the legal opinion of the LDI NRW into account when advising our clients. In any case, it will be important to ensure an adequate level of transparency to the newsletter recipients. If you have any questions about this and other aspects of email marketing, please do not hesitate to contact us.
Dr. Lukas Mezger, UNVERZAGT Rechtsanwälte
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